Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1996
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600398
VETERANS' APPEALS DIVISION ) Re DAWN ELEANOR DUNN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate28 November 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
............[Sgd S D Hotop]..........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – veteran served in Royal Australian Navy from 1947 to 1959 – veteran rendered operational service in 1947-1951 and 1953-1954 – veteran contracted malignant neoplasm of prostate in 1995 – veteran claimed malignant neoplasm of prostate war-caused – veteran died from malignant neoplasm of prostate in June 2003 – veteran’s claim maintained by applicant as widow – Statement of Principles – reasonable hypothesis that veteran’s malignant neoplasm of prostate connected with operational service – Tribunal satisfied beyond reasonable doubt that factual foundation of reasonable hypothesis disproved – veteran’s malignant neoplasm of prostate not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 7(1), s 9(1), s 120, s 120A and s 196B
Statement of Principles concerning Malignant Neoplasm of the Prostate (Instrument No 28 of 2005)
Statement of Principles concerning Malignant Neoplasm of the Prostate (Instrument No 84 of 1999)
Bull v Repatriation Commission (2001) 188 ALR 756
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrne v Repatriation Commission (2007) 97 ALD 359
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal (2007) 96 ALD 536
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Dunn (2006) 44 AAR 131
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
28 November 2007 Deputy President S D Hotop
Dr P A Staer, MemberIntroduction
1. This matter is again before the Tribunal following a successful appeal to the Federal Court of Australia by the Repatriation Commission (“the respondent”) against a decision of the Tribunal made on 2 June 2005: see Repatriation Commission v Dunn (2006) 44 AAR 131.
2. The applicant, Dawn Eleanor Dunn, is the widow of John Forbes Dunn (“the veteran”) who died from prostate cancer (malignant neoplasm of the prostate) on 15 June 2003. The veteran was first diagnosed with prostate cancer in February/March 1995.
3. The veteran, whose date of birth was 1 November 1929, served in the Royal Australian Navy (“RAN”) from 12 July 1947 to 11 July 1959, and he rendered operational service, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 12 July 1947 to 30 June 1951 and from 2 November 1953 to 16 July 1954.
4. On 20 March 2002 the veteran made a claim for a disability pension under Pt II of the VE Act, and on 30 April 2002 a delegate of the respondent decided that the veteran’s solar keratoses condition was war-caused but…
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CaseChat Overview and Summary
The central legal issue before the court was whether the malignant neoplasm of the prostate contracted by the veteran was connected to his operational service during his military career, thereby qualifying him for war-related disability pension benefits. This involved assessing the factual foundation of the reasonable hypothesis that the veteran's condition was war-caused, as outlined in the relevant Statements of Principles. The Tribunal had to determine if the evidence supported a reasonable hypothesis that the malignant neoplasm of the prostate was connected to the veteran's operational service and if the factual foundation of such a hypothesis was disproved beyond reasonable doubt.
The Tribunal considered the evidence and found that the factual foundation of the reasonable hypothesis that the veteran's malignant neoplasm of the prostate was connected to his operational service was disproved beyond reasonable doubt. Therefore, the Tribunal was satisfied that the veteran's malignant neoplasm of the prostate was not war-caused. Consequently, the Tribunal affirmed the decision under review, rejecting the widow's claim for a disability pension on the basis of the veteran's malignant neoplasm of the prostate being war-caused.
The Tribunal's decision was based on the lack of sufficient evidence to support the hypothesis that the malignant neoplasm of the prostate was connected to the veteran's operational service. The Tribunal's findings and the applicable legal principles led to the affirmation of the decision under review, and no pension benefits were awarded.
Orders
Orders of the court
The Tribunal affirms the decision under review.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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